Vicenda Battisti atto secondo: la nuova decisione del Supremo Tribunal Federal e le persistenti violazioni del diritto internazionale

Abstract

The Brazilian Supreme Court decision of 8 June 2011, which dismissed the Italian application against the decision of the former Brazilian President Luiz Inacio Lula da Silva, who had denied the extradition of Cesare Battisti in Italy, is of particular interest not only because it shows an internal contrast between political and judicial system, but mainly because it contains some statements contrary to international law. In particular, the decision, describing the act as a political act of Lula expression of state sovereignty and therefore unquestionable in domestic court, has allowed Brazil to escape to comply with the treaty obligations made by the ratification of the Treaty on bilateral extradition of 17 October 1989, despite the numerous occasions it was claimed by internal tribunal that these acts are under jurisdictional control. The decision of Lula also makes frequent recourse to the conclusions reached by the Advocate General Albuquerque Faria who recalled the risk of human rights violations against Battisti. This statement has not, however, a factual finding as there is no evidence as to the risk of persecution of Battisti in Italy. As a result, Brazil has violated the customary rule of pacta sunt servanda failing to comply with the obligations contained in the 1989 Treaty. Italy, after the ‘defeat’ on the internal level, can now apply to the International Court of Justice although it will be unlikely to achieve the delivery of Battisti